U of M refutes NCAA decision on basketball penalties

Claims 'strict liability' precedents not upheld

Dan Wolken

12:00 AM, Oct 10, 2009

In a 45-page appeal submitted to the NCAA on Thursday, the University of Memphis issued a stinging critique of the "strict liability" standard used by the Committee on Infractions to strip its men's basketball program of 38 victories and NCAA Tournament revenue from the 2007-08 season.

Though Memphis acknowledges in the report that major violations occurred, the school argues that the penalties imposed on the program and the rationale for those penalties are not only unprecedented in NCAA legislative history but improper given the language used by the Committee on Infractions in its August ruling against Memphis.

"The Committee's statement concerning the finding that this is a 'strict liability situation' is not supported by evidence, precedent or logic," Memphis says in the brief, which was prepared by Kansas City-based attorney Mike Glazier.

The violations, which were laid out in an NCAA notice of allegations received by the school in January, stemmed from former point guard Derrick Rose's only season at Memphis. The NCAA alleged -- and ultimately ruled -- that Rose was retroactively ineligible to play for Memphis because of a fraudulent SAT that was invalidated by the Educational Testing Service in May 2008.

"Strict liability" refers to the NCAA's assertion that Memphis was liable in the case even though it wasn't accused of being involved in academic fraud.

Memphis also was charged with failing to monitor its charter airplane service when Rose's brother, Reggie Rose, was not charged for more than $2,000 worth of travel expenses.

In explaining its ruling against Memphis, however, the Committee on Infractions did not consider the circumstances surrounding Rose's SAT. Rather, the NCAA simply ruled that because the ETS had invalidated Rose's test score and he did not respond to requests to re-take the exam, it was a "strict liability" situation that required a forfeiture of the 2007-08 season.

During a teleconference on Aug. 20 explaining the decision, committee chairman Paul Dee said that Rose's SAT score "didn't require further inquiry or finding as to whether or not there were improprieties in the administration of the exam" because he had "been ineligible from the very beginning."

Memphis' appeal, which was obtained by The Commercial Appeal through the Freedom of Information Act, calls the NCAA's use of that rationale a "procedural error" that is not supported by current NCAA legislation. Furthermore, the school argues that by upholding the penalties given to Memphis under the "strict-liability" standard, it sets a precedent that "will apply to (future) situations that do not warrant such treatment and could result in outcomes unacceptable to the Division 1 membership."

In the report, the school found just one other example of the term "strict liability" being used in an NCAA decision -- a November 2008 case involving Indiana's basketball program.

Memphis, however, argues that the context of the phrase in Indiana's case is different, relating to the adherence of former coach Kelvin Sampson to penalties that were issued from his time at Oklahoma before changing jobs.

Memphis also outlines an argument that the modification of NCAA bylaws over the last 20 years points directly to an "intentional departure from a strict-liability approach."

According to the appeal, language in NCAA legislation was specifically changed in 2001 from "shall" to "may" with regard to consequences of using an ineligible player. Memphis claims the discretionary authority granted by that language is contrary to Dee's stance on Rose's SAT score, as the current bylaw "requires an evaluation by the Committee of the circumstances of the case and is the polar opposite of establishing strict liability."

Memphis also states in the appeal that it found three secondary violations cases (but no major infractions cases) in which student-athletes were certified as eligible by the NCAA and the school but later ruled ineligible based on new information. In none of those cases were records vacated.

"In each case, the institution was held responsible for having allowed the student-athlete to compete, but the consequences of that participation were clearly mitigated by an evaluation of the facts, including the determination that the institution had relied on the NCAA certification and that it did not have a reason to withhold the student-athlete at the time he competed," the appeal states.

In arguing for a reduction in penalties, Memphis cites two cases in which the Infractions Appeals Committee ruled that four factors should be considered before a vacation-of-records penalty. Those factors include academic fraud, serious intentional violations, direct involvement of a coach or high-ranking administrator and a large number of violations. Memphis argues that it was not accused of any of those factors by the Committee on Infractions.

Once the appeal is received by the NCAA, the Committee on Infractions will have 30 days to issue a response. Memphis can submit a rebuttal 14 days after that, at which point the NCAA enforcement staff will make a written statement on Memphis' appeal. Memphis gets 10 days to respond to the enforcement staff's statement before a hearing is scheduled.